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2015 DIGILAW 1918 (HP)

Jasbir Singh v. Satwant Kaur

2015-12-18

MANSOOR AHMAD MIR

body2015
JUDGMENT : Mansoor Ahmad Mir, J. Both these appeals are directed against the award, dated 15th May, 2009, passed by the Motor Accident Claims Tribunal-I, Sirmaur District at Nahan, H.P., (for short, the Tribunal), whereby compensation to the tune of Rs.65,000/, alongwith interest at the rate of 7.5% per annum, came to be granted in favour of the claimant and the owners and the driver came to be saddled with the liability, (for short, the impugned award). 2. Feeling aggrieved, the claimant Jasbir Singh has questioned the impugned award by the medium of FAO No.342 of 2009 on the ground of adequacy of compensation, while the owners (Satwant Kaur and Paramjeet Singh) and the driver (Gurdev Singh) have assailed the impugned award in FAO No.390 of 2009 on the ground that the Tribunal has fallen in error in saddling them with the liability and has wrongly exonerated the insurer. Facts: 3. Claimant Jasbir Singh invoked the jurisdiction of the Tribunal under Section 166 of the Motor Vehicles Act, 1988, (for short, the Act), for grant of compensation to the tune of Rs.6.00 lacs, as per the break-ups given in the claim petition. It was averred that on 20.12.2005, at about 1.30 p.m., father of the claimant, namely, Bhajan Singh, aged about 60 years, was walking alongside the road, when a tractor bearing No.HP-17A-5033, owned jointly by Satwant Kaur and Paramjeet Singh (original respondents No.1 and 2), being driven by the driver, namely, Gurdev Singh (appellants in FAO No.390 of 2009), fell upon the said Bhajan Singh, as a result of which he sustained injuries and later on succumbed to the same. FIR No.428 of 2005, under Sections 279, 337 and 304-A of the Indian Penal Code, (for short, IPC), came to be registered at Police Station, Paonta Sahib. It was further averred that the deceased was sculptor by profession and was earning Rs.9,000/- per month. Thus, the claim petition filed by the claimant Jasbir Singh. 4. Respondents resisted the claim petition by filing replies. 5. On the pleadings of the parties, the Tribunal framed the following issues: “1. Whether petitioner Jasbir Singh is the heir of deceased Bhajan Singh, who died in the accident, as alleged? OPP 2. Thus, the claim petition filed by the claimant Jasbir Singh. 4. Respondents resisted the claim petition by filing replies. 5. On the pleadings of the parties, the Tribunal framed the following issues: “1. Whether petitioner Jasbir Singh is the heir of deceased Bhajan Singh, who died in the accident, as alleged? OPP 2. Whether Bhajan Singh died in a vehicular accident involving tractor No.HP-17-A-5033 on 20-12-2005 at about 1.30 PM at place Bata Bridge being driven by respondent No.3 Gurdev Singh in a rash and negligent manner, as alleged? OPP 3. To what amount of compensation the petitioner is entitled to? OPP 4. Whether the present petition is the outcome of collusion between petitioner and respondents No.1 to 3, as alleged? OPR-4 5. Whether deceased himself was negligent and responsible for his death, as alleged? OPR-4. 6. Whether the tractor was being plied in contravention of the terms and conditions of insurance policy, as alleged? OPR-4. 7. Whether the driver of tractor did not possess a valid and effective driving licence at the time of accident, as alleged? OPR-4 8. Whether the tractor was not insured for carrying passengers and no extra premium was paid to the insurance company for covering the risk of passengers traveling in the trolley, as alleged? OPR-4. 9. Relief.” 6. In order to prove his case, the claimant examined PW-1 MHC Arun Kumar and PW-3 Shri Dharam Singh, while the claimant himself stepped into the witness box as PW-2. On the other hand, respondents examined RW-1 ASI Sakir Khan, RW-2 Satwant Kaur (owner of the vehicle) and RW-3 Mehar Singh. Parties also proved on record Ext.PW-1/A (copy of FIR), Ext.PW-2/A (affidavit of PW-2 Jasbir Singh), Ext.PW-2/B (copy of the death certificate), Ext.PW-2/C (copy of the postmortem report), Ext.PW-3/A (affidavit of PW-3 Dharam Singh), Ext.PA (certified copy of the judgment in civil suit), Ext.RX (copy of the insurance policy), Ext.RW-2/A (affidavit of RW-2 Satwant Kaur), Ext.RW- 2/B (copy of the RC), Ext.RW-2/C (copy of insurance policy), Ext.RW-2/D (uncertified copy of the driving licence), Ext.RW- 3/A (copy of the driving licence register) and Ext.R1 (copy of the certificate). 7. The Tribunal after scanning the pleadings as well as the entire evidence held that the claimant was entitled for compensation to the tune of Rs.65,000/- alongwith interest at the rate of 7.5% per annum, and saddled the owners and the driver with the liability. 8. 7. The Tribunal after scanning the pleadings as well as the entire evidence held that the claimant was entitled for compensation to the tune of Rs.65,000/- alongwith interest at the rate of 7.5% per annum, and saddled the owners and the driver with the liability. 8. Feeling aggrieved, the claimant, and the owners and the driver have filed the instant appeals, as detailed above. 9. The following two questions arise for determination in the instant appeals: i) Whether the Tribunal has rightly exonerated the insurer from the liability? ii) Whether the amount of compensation awarded by the Tribunal is inadequate? 10. As far as the first question is concerned, the same is to be decided in favour of the owners and the driver for the following reasons. The claimant has specifically pleaded in the Claim petition that the deceased, at the relevant point of time, was walking alongside the road and the offending tractor loaded with sugarcane turned turtle and the sugarcane fell on the deceased as a result of which he sustained injures and succumbed to the same. 11. Respondents have evasively denied all the paragraphs of the Claim Petition. The insurance Company (original respondent No.4), in its first reply, has admitted that the deceased died because of his own negligence while crossing the road. However, thereafter, the insurance company amended its reply and pleaded therein that the deceased was traveling on the offending tractor as a gratuitous passenger. Thus, it was pleaded by the insurance company that the offending tractor was being plied in violation of the provisions of Sections 147 and 149 of the Act read with the terms and conditions contained in the insurance policy. 12. The claimant, in order to prove that the deceased, at the time of accident, was walking alongside the road, has stepped into the witness box as PW-2 and has stated that the deceased was not traveling on the offending tractor but was walking by the side of the road. 13. The claimant has also examined PW-3 Dharam Singh, who had lodged the FIR Ext.PW-1/A immediately after the accident had taken place. This witness has clearly stated that he had witnessed the accident and that the offending tractor, all of a sudden, turned turtle and the sugarcane fell on the deceased, who was standing beside the road. 14. 13. The claimant has also examined PW-3 Dharam Singh, who had lodged the FIR Ext.PW-1/A immediately after the accident had taken place. This witness has clearly stated that he had witnessed the accident and that the offending tractor, all of a sudden, turned turtle and the sugarcane fell on the deceased, who was standing beside the road. 14. On the other hand, the learned counsel for the insurer has relied heavily on the statement of RW-1 Sakir Khan, who had conducted the investigation and concluded that the deceased was sitting on the tractor at the time of accident. In cross examination, RW-1 Sakir Khan has specifically stated that he reached at the conclusion on the basis of the statement made by Dharam Pal PW-3, who lodged the FIR of the accident. 15. Thus, the statement of PW-3 Dharam Pal was the sole basis for RW-1 Sakir Khan to conclude that the deceased was sitting on the tractor at the time of the accident. However, the said Dharam Pal, while appearing as PW-3, as has been discussed supra, has explicitly stated that the deceased was on the side of the road at the time of accident. The owner of the offending tractor, namely, Satwant Kaur (original respondent No.1) has specifically stated that the deceased was walking by the side of the road at the time of accident. Not only this, the insurer, in its first reply, though amended subsequently, admitted that the accident had occurred due to the negligence on the part of the deceased inasmuch as the deceased, all of a sudden, appeared from the road side, in front of the moving tractor. 16. From the above, it is, prima facie, established that the deceased was not traveling on the tractor, but was walking on the side of the road when the offending tractor turned turtle and the sugarcane fell on him, as a result of which he died. 17. It is beaten law of the land that the Courts, while determining the cases of compensation in vehicular accidents, must not succumb to the niceties and hyper technicalities of law. It is also well established principle of law that negligence in compensation cases has to be decided on the hallmark of preponderance of probabilities and not on the basis of proof beyond reasonable doubt. It is also well established principle of law that negligence in compensation cases has to be decided on the hallmark of preponderance of probabilities and not on the basis of proof beyond reasonable doubt. Furthermore, the claimants claiming compensation in terms of Section 166 of the Act is not to be seen as an adversial litigation, but is to be determined while keeping in view the aim and object of granting compensation. 18. My this view is fortified by the judgment of the Apex Court in Dulcina Fernandes and others vs. Joaquim Xavier Cruz and another, (2013) 10 SCC 646 . 19. The Apex Court in Savita vs. Bindar Singh & others, 2014 AIR SCW 2053, has held that at the time of fixing compensation, courts should not succumb to niceties or technicalities of law. It is apt to reproduce paragraph 6 of the said decision hereunder: “6. After considering the decisions of this Court in Santosh Devi (Supra) as well as Rajesh v. Rajbir Singh (supra), we are of the opinion that it is the duty of the Court to fix a just compensation. At the time of fixing such compensation, the court should not succumb to the niceties or technicalities to grant just compensation in favour of the claimant. It is the duty of the court to equate, as far as possible, the misery on account of the accident with the compensation so that the injured or the dependants should not face the vagaries of life on account of discontinuance of the income earned by the victim. Therefore, it will be the bounden duty of the Tribunal to award just, equitable, fair and reasonable compensation judging the situation prevailing at that point of time with reference to the settled principles on assessment of damages. In doing so, the Tribunal can also ignore the claim made by the claimant in the application for compensation with the prime object to assess the award based on the principle that the award should be just, equitable, fair and reasonable compensation.” 20. A reference may also be made to the decision of the Apex Court in Sohan Lal Passi v. P.Sesh Reddy and others, AIR 1996 Supreme Court 2627, in which, in paragraph 12, it was observed that the courts, while deciding claim petitions, must keep in mind that the right of the claimants is not defeated on technical grounds. A reference may also be made to the decision of the Apex Court in Sohan Lal Passi v. P.Sesh Reddy and others, AIR 1996 Supreme Court 2627, in which, in paragraph 12, it was observed that the courts, while deciding claim petitions, must keep in mind that the right of the claimants is not defeated on technical grounds. Relevant portion of paragraph 12 of the said decision is reproduced hereunder: “12. ........................ While interpreting the contract of insurance, the Tribunal and Courts have to be conscious of the fact that right to claim compensation by heirs and legal representatives of the victims of the accident is not defeated on technical grounds. Unless it is established on the materials on record that it was the insured who had wilfully violated the condition of the policy by allowing a person not duly licensed to drive the vehicle when the accident took place, the insurer shall be deemed to be a judgment debtor in respect of the liability in view of sub-section (1) of Section 96 of the Act. It need not be pointed out that the whole concept of getting the vehicle insured by an insurance company is to provide an easy mode of getting compensation by the claimants, otherwise in normal course they had to pursue their claim against the owner from one forum to the other and ultimately to execute the order of the Accident Claims Tribunal for realisation of such amount by sale of properties of the owner of the vehicle. The procedure and result of the execution of the decree is well known.” 21. This Court also, in the recent past, in series of judgments, has followed the similar principle and held that granting of compensation is just to ameliorate the sufferings of the victims and compensation is to be granted without succumbing to the niceties of law, hyper-technicalities and procedural wrangles and tangles. 22. A Single Judge of this Court in FAO No. 127 of 1999, titled as Bimla Devi and others versus Himachal Road Transport Corporation and others, decided on 22.08.2005, held that the claimants have to prove the case by leading cogent evidence and applied the mandate of CPC read with the Evidence Act, was questioned before the Apex Court by the medium of Civil Appeal No. 2538 of 2009, titled as Bimla Devi & Ors. versus Himachal Road Transport Corpn. versus Himachal Road Transport Corpn. & Ors., reported in 2009 AIR SCW 4298, and the Apex Court set aside the said judgment and held that strict proof is not required. It is apt to reproduce paras 2 and 12 to 15 of the judgment herein: "2. This appeal is directed against a judgment and order dated 22.8.2005 passed by the High Court of Himachal Pradesh, Shimla in FAO No. 127 of 1999 whereby and whereunder an appeal preferred against a judgment and award dated 28.10.1998 passed by the Motor Accident Claims TribunalII [MACT (I), Nahan] in MAC Petition No.21NL/2 of 1997, was set aside. xxx xxx xxx 12. While dealing with a claim petition in terms of Section 166 of the Motor Vehicles Act, 1988, a Tribunal stricto sensu is not bound by the pleadings of the parties; its function being to determine the amount of fair compensation in the event an accident has taken place by reason of negligence of that driver of a motor vehicle. It is true that occurrence of an accident having regard to the provisions contained in Section 166 of the Act is a sine qua non for entertaining a claim petition but that would not mean that despite evidence to the effect that death of the claimants predecessor had taken place by reason of an accident caused by a motor vehicle, the same would be ignored only on the basis of a post mortem report vis.a.vis the averments made in a claim petition. 13. The deceased was a Constable. Death took place near a police station. The post mortem report clearly suggests that the deceased died of a brain injury. The place of accident is not far from the police station. It is, therefore, difficult to believe the story of the driver of the bus that he slept in the bus and in the morning found a dead body wrapped in a blanket. If the death of a constable has taken place earlier, it is wholly unlikely that his dead body in a small town like Dharampur would remain undetected throughout the night particularly when it was lying at a bus stand and near a police station. In such an event, the court can presume that the police officers themselves should have taken possession of the dead body. 14. In such an event, the court can presume that the police officers themselves should have taken possession of the dead body. 14. The learned Tribunal, in our opinion, has rightly proceeded on the basis that apparently there was absolutely no reason to falsely implicate the respondent Nos. 2 and 3. Claimant was not at the place of occurrence. She, therefore, might not be aware of the details as to how the accident took place but the fact that the First Information Report had been lodged in relation to an accident could not have been ignored. Some discrepancies in the evidences of the claimant s witnesses might have occurred but the core question before the Tribunal and consequently before the High Court was as to whether the bus in question was involved in the accident or not. For the purpose of determining the said issue, the Court was required to apply the principle underlying burden of proof in terms of the provisions of Section 106 of the Indian Evidence Act as to whether a dead body wrapped in a blanket had been found at the spot at such an early hour, which was required to be proved by the respondent Nos. 2 and 3. 15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. For the said purpose, the High Court should have taken into consideration the respective stories set forth by both the parties." 23. Applying the tests to the instant case, the claimant has, prima facie, proved that the deceased was not traveling on the tractor, but was walking by the side of the road and the tractor, being driven by its driver rashly and negligently, turned turtle and the sugarcane fell on the deceased, as a result of which he sustained injuries and ultimately lost his life. 24. 24. Having said so, the findings of the Tribunal that the deceased was traveling on the tractor as a gratuitous passenger and that the owners had committed willful breach merit to be set aside and the same are set aside accordingly. 25. The factum of the driver having a valid and effective driving licence at the time of accident is not in dispute. It was for the insurer to plead and prove that the owners had committed willful breach of the terms and conditions contained in the insurance policy, has not led any evidence. Thus, the insurer has failed to prove that the owners had committed willful breach. 26. In view of the above discussion, my issue-wise findings are as under: Issue No.1: 27. Findings returned by the Tribunal on this issue are not in dispute. Accordingly, the same are upheld. Issues No.2: 28. In view of the above discussion, this issue is decided in favour of the claimant. Issues No.4, 5 and 6: 29. From the above discussion, it is clear that the insurer has failed to prove these issues. Accordingly, these issues are decided against the insurer. Issue No.7: 30. In regard to this issue, no arguments were advanced by the learned counsel for the insurer. There is no material on the record fromwhere it can be inferred that the driver of the offending tractor was not having a valid and effective driving licence at the time of accident. The Tribunal has rightly held that the driver of the offending tractor was having a valid and effective driving licence. Accordingly, this issue is also decided against the insurer. Issue No.8: 31. In view of the discussion made hereinabove, this issue is also decided against the insurer. 32. As a consequence, the insurer is saddled with the liability. Issue No.3: 33. Coming to issue No.3, the Tribunal has granted a meager compensation. Admittedly, the deceased was 60 years of age at the time of accident. The Tribunal has applied the multiplier of 5. 32. As a consequence, the insurer is saddled with the liability. Issue No.3: 33. Coming to issue No.3, the Tribunal has granted a meager compensation. Admittedly, the deceased was 60 years of age at the time of accident. The Tribunal has applied the multiplier of 5. However, in view of 2nd Schedule attached to the Act read with the judgment of the Apex Court in Sarla Verma (Smt.) and others vs. Delhi Transport Corporation and another, (2009) 6 SCC 121 , which decision was also upheld by the larger Bench of the Apex Court in Reshma Kumari and others vs. Madan Mohan and another, 2013 AIR (SCW) 312, multiplier of ‘6’ was just and appropriate. 34. As regards the income of the deceased is concerned, it was pleaded by the claimant in the claim petition that the deceased was a sculptor by profession and was earning Rs.9,000/- per month. However, no evidence has been led by the claimant to prove the said income. Therefore, by guess work, it can safely be held that the deceased would have been earning Rs.4,500/- per month. 35. In view of the law laid down by the Apex Court in Sarla Verma’s case (supra), after deducting 1/3rd of the total income towards the personal expenses of the deceased, it is held that the claimant lost source of dependency to the tune of Rs.3,000/- per month. Accordingly, the claimant is held entitled to compensation to the tune of Rs.3,000/- x 12 x 6 = Rs.2,16,000/- under the head loss of source of dependency. In addition, a sum of Rs.10,000/- each, i.e. Rs.30,000/- in all, is also awarded under the heads ‘loss of estate’, ‘loss of love and affection’ and ‘funeral expenses’. 36. Having glance of the above discussion, the claimant is held entitled to Rs.2,16,000/- + Rs.30,000/- = Rs.2,46,000/-, alongwith interest as awarded by the Tribunal. The insurer is directed to deposit the entire amount alongwith up-to-date interest within a period of six weeks from today and on deposit, the Registry is directed to release the same in favour of the claimant forthwith, after proper identification. 37. The insurer is directed to deposit the entire amount alongwith up-to-date interest within a period of six weeks from today and on deposit, the Registry is directed to release the same in favour of the claimant forthwith, after proper identification. 37. The statutory amount deposited by the appellants in FAO No.390 of 2009, titled Satwant Kaur and others vs. Jasbir Singh and another, is awarded as costs throughout in favour of the claimant and the Registry is directed to release the said amount with interest accrued thereon in favour of the claimant forthwith. Remaining amount, if any, alongwith interest, be refunded in favour of the appellants through their bank account. 38. Both the appeals are allowed, as indicated above, and stand disposed of accordingly.